Citation Nr: 21074069 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-63 479 DATE: December 14, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for left ankle sprain is denied. FINDING OF FACT The Veteran's left ankle sprain does not raise to the level of marked limitation of motion, as the Veteran has not exhibited less than 5 degrees dorsiflexion, or less than 10 degrees plantar flexion. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for left ankle sprain have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1993 to September 2001. This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in February 2019 and July 2021 when it was remanded for additional development. The Veteran seeks an increased initial rating for his service-connected left ankle sprain. The Veteran is rated under Diagnostic Code 5271-5003. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. 38 C.F.R. § 4.27. The second diagnostic code provides further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Id.; see Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006). Thus, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated by analogy. Accordingly, the Veteran's left ankle disability was rated for degenerative arthritis of the left ankle with painful and limited range of motion that would be otherwise noncompensable. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, under Diagnostic Code 5271, a rating of 10 percent is warranted when limitation of motion of the ankle is moderate. 38 C.F.R. § 4.71a. A maximum, 20 percent rating is warranted where the limitation of motion in the ankle is marked. Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Words such as "moderate" and "marked" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. In this respect, normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. As of February 7, 2021, under the amended criteria, a rating of 10 percent is warranted when limitation of motion of the ankle is moderate (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). 38 C.F.R. § 4.71a. A maximum, 20 percent rating is warranted where the limitation of motion in the ankle is marked (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). The Veteran's left ankle disability has been assigned an initial 10 percent rating effective March 1, 2012. VA and private treatment records throughout the period on appeal reflect the Veteran's complaints of ankle pains. The Veteran was afforded a VA ankle conditions examination in August 2013. The Veteran reported he sprained his left ankle during a basketball game in 1997 and since that injury, "his ankle has never felt the same." The examiner described his condition as stable but not improving since 1997. The examiner noted the Veteran had been seen by his primary care physician (PCP) since being discharged in 2001. Treatment consisted of wearing double socks and taking Motrin as needed for pain. The Veteran denied flare-ups. The Veteran exhibited 45 degrees or more of plantar flexion and 5 degrees of dorsiflexion of the left ankle with no objective evidence of painful motion. The Veteran performed repetitive-use testing with no additional loss in range of motion and no functional loss/functional impairment. Muscle strength testing and joint stability were normal. There were no signs of ankylosis of left ankle. In an October 2013 VA medical opinion, an examiner found that the Veteran's left ankle disability was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. In his October 2014 notice of disagreement (NOD), the Veteran reported that his ankle limits his mobility and physical activities, and continues to worsen. The Veteran was afforded the August 2020 VA examination to determine the severity of his service-connected left ankle sprain. The Veteran reported that his ankle pain and range of motion had gotten worse. He described his pain as achy and reported swelling. He used Motrin 800mg every other day. The Veteran denied flare-ups. Upon range of motion testing, the Veteran exhibited 25 degrees of plantar flexion and 20 degrees of dorsiflexion. Pain was noted with dorsiflexion that did not result in functional loss. The Veteran performed repetitive-use testing with no additional loss in range of motion and no functional loss. Muscle strength testing and joint stability were normal. There were no objective signs of ankylosis of the left ankle. The Veteran was noted to use an arch support regularly. The Veteran was afforded another examination in August 2021. The Veteran reported that his ankle symptoms had worsened. He also reported tightness and pain. He used Motrin 800mg on an as needed basis. He also reported increased pain when standing, walking, running for long periods of time, and climbing stairs. The Veteran denied flare-ups. Upon active range of motion testing, the Veteran exhibited 45 degrees of plantar flexion and 20 degrees of dorsiflexion. Pain was noted with plantar flexion and dorsiflexion which caused functional loss. Passive range of motion was the same as active range of motion. The examiner indicated that passive range of motion of plantar flexion and dorsiflexion was the same as active range of motion of plantar flexion and dorsiflexion. Crepitus was noted. The Veteran performed repetitive-use testing with no additional loss of function or range of motion. Joint stability was normal and there were no objective signs of ankylosis of the left ankle. The examiner indicated the measurements for active and passive range of motion and in weight-bearing and non-weight-bearing would be similar if taken at the time of the prior examination in November 2013. As discussed above, the Board remanded this issue for new examinations to evaluate the current severity of the Veteran's service-connected left ankle sprain in February 2019 and July 2021. The Board also remanded for opinions as to whether the requested measurements for active and passive range of motion and in weight-bearing and nonweight-bearing would be similar if taken at the time of the prior examination in November 2013, and if not, how they would have differed. The Board notes that Veteran was not afforded a VA ankle conditions examination in November 2013, but was instead afforded an examination in August 2013. Although the August 2021 examiner incorrectly referenced a November 2013 examination (as directed by prior Board remands), rather than the August 2013 examination, in comparing the requested measurements of the August 2021 examination, the Board notes there is only one VA ankle conditions examination of record in 2013 (i.e., August 2013). As such, there is no prejudice in finding that the August 2021 examiner reviewed the August 2013 VA examination and, thus, relying on the August 2021 VA examination and opinion for the left ankle disability. The Board finds that the Veteran's left ankle sprain was productive of moderate and chronic pain. Said pain was not typically accompanied by additional symptoms such as weakness or fatigability. The Board acknowledges that the Veteran's left ankle range of motion was limited during this period, however, it did not raise to the level of marked limitation of motion. Moreover, the Veteran did not exhibit less than 5 degrees dorsiflexion, or less than 10 degrees plantar flexion as required by the Code to be classified as marked limitation of motion. Accordingly, his disability picture does not rise to the level of marked limitation of motion. Thus, an initial rating greater than 10 percent is not warranted under either the old or new rating criteria. In offering the above conclusions, the Board has considered the Veteran's lay statements regarding the severity of his symptoms, to include pain and limited motion of the left ankle. While he is competent to report symptoms capable of lay observation, he is not competent to identify a specific level of disability according to the applicable diagnostic codes. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Accordingly, this claim for an initial rating in excess of 10 percent for the left ankle disability must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.N., Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.